Court File and Parties

COURT FILE NO.: 01-1123/07 DATE: 20170511 SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

DIANE BOODHOO and DIANE BOODHOO as estate trustee of the ESTATE OF ALICIA BOODHOO Plaintiffs

– and –

THAKUR (JOHN) PERSUAD and SURUJDAI (SHANTI) PERSAUD, Defendant

BEFORE: F.L. Myers, J.

COUNSEL: Robert P. Sullivan and Wade Morris, counsel for the Plaintiff Jujhar Mangat, counsel for the Defendants Mark M. Persaud, incoming counsel for the Defendants

HEARD: May 11, 2017

Endorsement

[1] On April 25, 2017 I heard a scheduling conference in court. I ordered a further case conference to refine the schedule to see this old matter through to trial.

[2] In this action, the plaintiff, as estate trustee of the estate of her late mother, seeks an accounting of her mothers’ estate from her uncle Thakur Persaud. Thakur Persaud previously was the estate trustee under the mother’s will. The co-defendant is the spouse of Thakur Persaud. The plaintiff alleges that the defendants have wrongfully dealt with and taken estate assets.

[3] The defendants are not beneficiaries under the will. The deceased owed a debt to Mr. Persaud that was to be repaid under the will. Otherwise, the beneficiaries are the children of the deceased. Despite relying on the will to have himself appointed as estate trustee, Mr. Peraud now alleges that the will was forged by the plaintiff. If that is so, then the ensuing intestacy will still leave the defendants bound to account for their conduct or misconduct and will continue to see the children of the deceased as the beneficiaries (although in different proportions than under the will). The defendants are adamant that they now wish to move to remove the plaintiff as estate trustee due to the forgery issue. That may lead to a replacement of the plaintiff by an Estate Trustee During Litigation. But it will not have any effect on the substantive issues in this action.

[4] If the defendants decide to bring some form of motion for interlocutory relief before trial, they are to deliver their motion record to counsel for the plaintiff and then counsel for all parties will convene a case conference by telephone through my office to discuss scheduling issues.

[5] In the meantime, the action is to proceed. The defendants have been through several counsel to date. Mr. Mangat advises that his instructions are to cease acting after the current case conference. Mr. Mark M. Persaud was on the call and advised that he expects to be retained by the defendants imminently.

[6] By order dated July 5, 2012, on consent, Stinson J. replaced Mr. Thakur Persaud with Ms. Boodhoo as estate trustee. Para. 2 of the order made by Stinson J. provided:

2. THIS COURT ORDERS, on consent, that Thakur Persaud shall deliver, on or before September 7, 2012, a full accounting of his administration of the Estate of Alicia Boodhoo from the date of his appointment to the date herein.

[7] Thakur Persaud has not complied with Justice Stinson’s order.

[8] On October 5, 2012, Stevenson J. made an order containing the following terms:

3. THIS COURT ORDERS, Mr. Persaud shall deliver an accounting of his administration of the estate when he was estate trustee that complies with the accounting requirements set out in the Rules of Civil Procedure.

4. THIS COURT ORDERS that Mr. Persaud shall deliver all documents and records pertaining to the estate within his control within 30 days.

[9] Thakur Persaud has not complied with either of these terms. He has not delivered the required accounting. He has not delivered to the estate trustee all or any documents and records pertaining to the administration of the estate as he was required to do by November 4, 2012 almost five years ago.

[10] Neither of the defendants has delivered affidavits of documents despite the close of pleadings.

[11] Mr. Mangat agrees that his clients are required and have been required to turn over to the estate trustee all documents relating to the estate administration. His excuse for his clients’ failure to comply with two court orders and the law is that in March of this year he retained a forensic accountant to provide a form of accounting as required. The accountant wrote in March that he required until the end of the first week of June to deliver a report. Mr. Mangat advises that he had discussions with the plaintiff’s counsel concerning the qualifications for a forensic expert and he took from this that the accounting was to take precedence. The plaintiff’s counsel deny the conversations alleged. I will not engage in that debate.

[12] Regardless of what was said between counsel, the retainer of an expert in March, 2017 does not address at all the defendants’ non-compliance from September, 2012 to that time. Moreover, if documents were compiled for the expert, there is no reason why copies of at least those documents could not have been given to the plaintiff at the same time. Furthermore, the defendants’ allegations concerning forgery do not, as yet, overcome the existence of the order of Stinson J., to which they consented, that appointed Ms. Boodhoo as the lawful estate trustee unless or until that situation is changed. The order made by Stevenson J. also remains outstanding unless or until it is set aside or amended. The fact that the defendants are challenging the will which they propounded and under which Mr. Persaud was able to take control of the assets of the estate is certainly worthy of note. But nothing said by Mr. Mangat excuses his clients’ failure to perform their obligations as ordered by the court twice and at law.

[13] The defendants’ ongoing procedural delays, including counsel’s refusals to book examinations for discovery, the defendants’ frequent changes of counsel, and their non-compliance with orders make it essential that this old action now be case managed to trial with some determination and a sense of urgency.

[14] The defendants’ possible new counsel, Mr. Mark Persaud, expressed concern with the unexplained delays and undertook that once retained he will move this action as expeditiously as possible toward trial. That is a very positive approach. If Mr. Mark Persaud is retained, I expect that counsel for all parties will cooperate on scheduling matters. Mr. Persaud asks for some time to get up to speed and prepare the defendants’ affidavits of documents. He agrees that in the interim there is no reason to hold up producing to the plaintiff at least the documents that the defendants gave to their expert. Mr. Mangat asks that nothing be required of the defendants before their expert’s report is expected at the end of the first week of June.

[15] In my view the expert report is a red herring. It can be delivered before trial subject to the time limits in the Rules and below. It has no bearing on the compliance with court orders by the defendants or the progress of the action generally. Mr. Mark Persaud is entitled to a few weeks to get up to speed on the file as he requests. Whether documents are produced before then and whether whatever is done is sufficient compliance with the outstanding orders and legal obligations of the defendants will become clearer over time.

[16] Accordingly, I make the following directions under Rule 50.13 of the Rules of Civil Procedure:

a. These directions apply regardless of whether the defendants bring a motion to remove the plaintiff as estate trustee; b. The defendants shall comply with the orders of Stinson J. and Stevenson J. made in this proceeding forthwith; c. The defendants shall serve their sworn affidavits of documents on the plaintiff’s counsel before 4:30 p.m. on May 31, 2017. The defendants’ sworn affidavits shall include comprehensive, particularized Schedules “B” and “C.” In addition, the defendants shall deliver to the plaintiff’s counsel, together with their sworn affidavits of documents, copies of all documents listed in Schedule “A” to their respective affidavits of documents. d. Subject to counsel agreeing on different dates, Thakur Persaud shall attend for examination for discovery on July 18, 2017 at a time and place to be set by the plaintiff’s counsel in a Notice of Examination to be served by 4:30 p.m. on July 14, 2017. Surujdai Persaud shall attend for examination for discovery on July 19, 2017 at a time and place to be set by the plaintiffs’ counsel in a Notice of Examination to be served by 4:30 p.m. on July 14, 2017. e. All undertakings given at the examinations for discovery shall be answered in full with complete documentary backup before 4:30 p.m. on August 31, 2017. f. Rule 34.12 of the Rules of Civil Procedure applies to all examinations for discovery in this action. That is, all questions to which objections are taken shall be answered in full at the time despite the objection. The answers given to any questions to which an objection is taken may not be used in evidence without a ruling being obtained at the hearing or trial at which such evidence is sought to be adduced. The only exception to the requirement for the witness to answer questions to which objection is taken is for questions objected to on the basis of lawyer and client privilege. Questions that are claimed to elicit a response that offends the lawyer and client privilege do not need to be answered unless or until a ruling is obtained. g. Any expert report relied upon by the defendants for trial shall be delivered to the plaintiff’s counsel before 4:30 p.m. on June 30, 2017. If the plaintiff proposes to respond with an expert report, she must deliver her expert’s report to the defendants’ counsel before 4:30 p.m. on August 31, 2017. h. The parties’ pre-trial conference memoranda shall be exchanged and delivered to my Assistant by email by 4:30 p.m. on September 15, 2017. i. Counsel shall schedule cooperatively a pre-trial conference through my office to be held during the last two weeks of September, 2017. j. As case management judge and pre-trial judge, I will not be the trial judge.

[17] The plaintiff’s counsel also asked for an order excluding the parties from each other’s examinations and prohibiting the defendants from discussing their discovery evidence until examinations for discovery are completed. As the defendants had no notice of this request, Rule 50.13(6) of the Rules of Civil Procedure does not anticipate the court dealing with it at this time. The parties did have notice in my endorsement of April 25, 2017 that the purpose of the case conference would be to schedule the remaining steps to trial as I have done above. While I greatly favour the use of summary process through case conferences where appropriate, the issue of excluding parties from examinations for discovery is a fact-laden decision that may well require evidence that can reasonably be expected to be contested. In my view, counsel should speak to see if they can agree on a protocol to assuage the plaintiff’s concerns failing which a case conference should be convened by telephone to discuss the process by which the issue will be resolved. This issue is a good test of new counsel’s ability to follow through on his undertaking on behalf of his putative clients to move the case forward as expeditiously as possible.

[18] Subject to any urgent issues that may arise in the interim, the next case conference will take place at 8:30 a.m. on June 1, 2017. My Assistant will circulate call-in particulars. If the defendants do not have counsel on the record for them on June 1, 2017, then, instead of a telephone conference, the case conference will be held in person in courtroom 8-3, at 330 University Avenue, commencing at 9:30 a.m.

[19] Mr. Mangat is to provide a copy of this endorsement to his clients so as to put them clearly on notice that by June 1, 2017 if the defendants have not cured their non-compliance with the orders of Stevenson J. and Stinson J. or if there is any term of this order with which they have not complied, without a proper, lawful excuse, the court will entertain a request by the plaintiff to strike the defendants’ pleadings with costs or for other relief as may be appropriate under Rule 60.12 of the Rules of Civil Procedure.

[20] This action is to move forward to a fair, efficient, affordable, and proportionate resolution on its real merits wherever they lie. There will be no more delays by any party.

F.L. Myers, J. Date: May 11, 2017